http://www.JewishWorldReview.com |
U.S. Supreme Court Justice Sandra Day O'Connor will be remembered in judicial terms as a "swinger." In judicial terms, that's not such a bad thing.

It only means that O'Connor often was the swing vote, the unpredictable vote in close Supreme Court cases. Unpredictability is not a bad quality in a judge, unless she is swinging into a direction with which you do not agree. Then you might call her something less flattering, like unreliable. Or worse.

But being a swinger also meant that O'Connor, 75, listened. In fact, she listened well before making a decision as dispassionately as possible.

That's what most of us like to think we are paying judges to do.

One of these to whom O'Connor notably listened was the late Justice Thurgood Marshall, the high court's first black justice, before he died in 1993.

In her memoir, "The Majesty of the Law: Reflections of a Supreme Court Justice," O'Connor recalled working with Marshall, a former civil rights lawyer who successfully argued the 1954 Brown vs. Board of Education school desegregation case.

"Although all of us come to the court with our own personal histories and experiences," she wrote, "Justice Marshall brought a special perspective. His was the eye of a lawyer who saw the deepest wounds in the social fabric and used law to help heal them. His was the ear of a counselor who understood the vulnerabilities of the accused and established safeguards for their protection. His was the mouth of a man who knew the anguish of the silenced and gave them a voice."

Justice Anthony Kennedy also wrote moving tributes on how Marshall schooled him and other justices, week after week, in one true story after another, in the mind-numbing brutality of lynchings, Jim Crow segregation and other racial injustices.

O'Connor said Marshall was "pushing and prodding us [Supreme Court justices] to respond not only to the persuasiveness of legal argument but also to the power of moral truth" by recounting stories of his upbringing and his travails as a lawyer in the South who defended black men against lynch-mob justice, and not always successfully.

Unfortunately, for those of us who oppose the death penalty, as Marshall did, O'Connor did not let him sway her far enough.

"She [O'Connor] heard the stories and said they affected her as stories, but they did not change her mind on the death penalty," Mark Tushnet, a Georgetown University law professor who clerked for Marshall, observed in a telephone interview.

Yet, Marshall may have had some impact, however subtle, two years ago when O'Connor wrote the opinion that upheld the affirmative-action admission policy at the University of Michigan Law School, although not the undergraduate school, as constitutional. It was permissible, she wrote, to take race into consideration as one among many factors for admissions, though racial quotas remained illegal.

She also wrote that America probably will need such race-based affirmative action for another 25 years, although she did not explain how or why she had arrived at that number.

In a tribute speech to Marshall, she wrote that while as a woman she had "experienced gender discrimination enough," she had no "personal sense ... of being a minority in a society that cared primarily for the majority," until she worked with Marshall.

As the great Supreme Court Justice Oliver Wendell Holmes famously observed: "The life of the law has not been logic; it has been experience."

Legal purists often argue against the value of experience as "law by anecdote," but real-life stories are what case law is all about. Lawmakers make laws; the courts apply laws to specific people and situations. What makes issues of race and gender so vexing is how all of our experiences are so vastly different.

Interestingly, historians say Holmes frustrated President Theodore Roosevelt, who viewed the appointment of Holmes to the high court as the major mistake of his presidency after they disagreed vehemently about the Sherman Antitrust Act. "Out of a banana I could carve a firmer backbone," Roosevelt reportedly said of Holmes.

O'Connor, a Ronald Reagan appointee, often frustrated conservatives as some sort of a traitor to the cause of the man who appointed her.

But, as the fireworks are sure to begin soon over who her replacement will be, many will be seeking a reliably liberal or conservative vote. I'll settle for one who takes the time to think intelligently and listen to the stories of others before making up his or her mind, especially for those who, as Sandra Day O'Connor wrote, are minorities "in a society that cares primarily for the majority."

Every weekday JewishWorldReview.com publishes what many in in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here.